PRAKASH RAMKRISHNA KHADSE Vs. MANIKRAO RAMAJI SONWANE

JUDGEMENT

(1.) THESE two appeals can be disposed of by common judgment since they arise out of judgment in Special Civil Suit no. 857 of 2002. Appeal No. 732 of 2007 has been preferred by original defendants 6 and 7 while Appeal no. 690 of 2007 has been preferred by original defendants No. 1 to 3. Respondent No. 1 is the original plaintiff. The parties shall hereinafter be referred to as plaintiff and defendants.

(2.) DEFENDANTS No. 1 to 3 are the owners of Survey No. 91 of village Warora district Nagpur. The defendants 1 to 3 entered into an agreement of sale of 2. 80 hectares i. e. 7 acres of land with the plaintiff. Price of the said land was settled at Rs. 1,37,500/- per acre. Thus the plaintiff was to pay total consideration of Rs. 9. 62,500/ -. One of the conditions of the agreement of sale was that the plaintiff-purchaser would pay Rs. 3,00,000/- to the defendants 1 to 3 upon which the defendants would execute the sale deed in respect of 2 acres of land. At the time of execution of the agreement of sale plaintiff paid Rs. 75,000/- in cash to the defendants 1 to 4. Defendant No. 1 had obtained a loan for purchase of a vehicle from one Finance Company. It was agreed that the plaintiff would repay the loan of rs. 1,50,000/- due to the said finance company. Accordingly plaintiff had issued three cheques of Rs. 50,000/- each. It is the contention of the plaintiff that he paid Rs. 3,00,000/- total to the defendants 1 to 3. Inspire of that, it is alleged, that defendants 1 to 3 failed to execute the sale deed. It was also agreed that the total land would be sold on or before 17. 1. 2002. It is the contention of the plaintiff that without giving any notice to the plaintiff the defendants 1 to 3 executed a sale deed in respect of 5 acres of land in favour of defendants 4 and 5 by registered sale deed dated 13. 07. 2001. plaintiff submits that this was a clear act of cheating. The plaintiff published a notice in the daily newspaper informing the public not to purchase the said property. A notice was also sent to defendants 1 to 3. Defendants 4 and 5 later sold the same piece of land to defendants 6 and 7 by a sale deed dated 07. 02. 2002. plaintiff submits that the plaintiff was ready and willing to execute the sale deed (? ). plaintiff therefore instituted a suit for specific performance of contract and for setting aside the sale in favour of defendants 4 to 7.

(3.) DEFENDANTS 1 to 3 filed their separate Written Statement at Ex. 23. Defendants do not dispute that defendants 1 to 3 are the owners of the suit property. They also do not dispute that they had agreed to sale 7 acres of land to the plaintiff for consideration of Rs. 2,62,500/ -. They also do not dispute that upon payment of Rs. 3,00,000/- to them they were to execute initially a sale deed in respect of 2 acres of land. Further they do not dispute that the entire land was to be sold on or before 17. 11. 2002. Defendants submit that it was the plaintiff who was unwilling to perform his part of contract and at his request the land was sold by the defendants 1 to 3 to defendants 4 and 5. It is also the contention of the defendants that plaintiff failed to execute the sale deed in respect of 2 acres of land. Their specific contention is that they did not receive a sum of Rs. 3,00,000/- which was a condition precedent for execution of sale deed in respect of 2 acres of land. They also submit that they had called upon the plaintiff to produce the evidence in respect of payment of money to defendants 1 to 3 and they had even signed the sale deed to be executed in favour of the plaintiff. They submit that the sale deed was not registered in respect of two acres of land because of the fact that plaintiff though agreed to produce the receipts of the payments to the defendants failed to do so. The defendants submit that plaintiff had in fact paid rs. 1,02,992/ -. The cheques issued by the plaintiffs in favour of Finance Company were never encashed. The defendants finally submit that since plaintiffs financial condition was not proper and therefore he had asked defendants to execute sale deed in favour of defendants 4 and 5 and plaintiff was never ready and willing to perform his part of the contract.